Digital Commons Network^™

Drafting Attorneys As Fiduciaries: Fashioning An Optimal Ethical Rule For Conflicts Of Interest, Paula A. Monopoli

Faculty Scholarship

The American Bar Association recently revised the ethical rules that govern lawyers. Its Ethics 2000 Commission proposed a number of changes to the Model Rules of Professional Conduct, including revisions to the rules that affect how the profession handles conflicts of interest in the area of attorneys who draft instruments that name themselves as fiduciaries. The intersection of these changes, with their subsequent clarification by an ABA opinion issued in May 2002, has broad implications for attorneys practicing in this area. Given the increasing elderly population, the trillions of dollars that they are transferring to their baby-boomer children, and the …

Survey Of The Law Of Cyberspace: Internet Contracting Cases 2004-2005, William L. Reynolds, Juliet M. Moringiello

Faculty Scholarship

This article reviews recent developments in the United States and the European Union involving Internet transactions. It describes those developments and analyzes both from a normative and practical perspective.

Regulation By Software, James Grimmelmann

Faculty Scholarship

Software is neither law nor architecture. It is its own modality of regulation. This Note builds on Larry Lessig’s famous formulation that “code is law” to argue that Lessig was wrong to equate computer software with physical architecture. Although software resembles both law and architecture in its power to constrain behavior, it has features that distinguish it from both. The Note identifies four relevant attributes of software: It is ruleish, potentially nontransparent, impossible to ignore, and vulnerable to sudden failure. By assessing the impact of these characteristics in a given context, one can decide whether software is a good or …

Virtual Worlds As Comparative Law, James Grimmelmann

Faculty Scholarship

What would happen if we took seriously the claims of virtual worlds to be genuinely new places? Societies have laws, so why should virtual societies be any different? My topic, then, will not be the law of virtual worlds, but rather law in virtual worlds. If lawyers can learn from studying the legal systems of common law and civil law countries, perhaps we can also learn from studying the legal systems of virtual worlds.

In some cases, these legal systems track our own surprisingly well. In other cases, the contrasts are striking. Both the similarities and differences between real-life law …

An Introduction, Randy Lee

Faculty Scholarship

No abstract provided.

Lessons To Be Learned, Lessons To Live Out: Catholicism At The Crossroads Of Judaism And American Legalism, Randy Lee

Faculty Scholarship

No abstract provided.

Attractive Complexity: Tax Deregulation, The Check-The-Box Election And The Future Of Tax Simplification, Steven A. Dean

Faculty Scholarship

No abstract provided.

Signals, Assent And Internet Contracting, Juliet M Moringiello

Faculty Scholarship

No abstract provided.

Survey Of The Law Of Cyberspace: Internet Contracting Cases 2004-2005, Juliet M. Moringiello, William L. Reynolds

Faculty Scholarship

No abstract provided.

The Heightened Standard Of Judicial Review In Cases Of Governmental Gender-Based Discrimination: Ruth Bader Ginsburg's Influence On The U.S. Supreme Court In Craig V. Boren, Carlo A. Pedrioli

Faculty Scholarship

This paper argues that, as an amicus curiae who was working for the American Civil Liberties Union, Ruth Bader Ginsburg influenced the U.S. Supreme Court’s decision-making in the landmark 1976 case of Craig v. Boren. Craig, which received national news coverage from the New York Times, provided women, and men, with greater protection against governmental gender-based discrimination. In making the argument, this paper initially provides a brief, but essential note on heightened scrutiny in equal protection cases. Next, the paper compares the arguments of Ginsburg and Justice William Brennan, who wrote the opinion of the Court. Finally, the paper explains …

2003-2004 Supreme Court Term: Another Losing Season For The First Amendment, Joel Gora

Faculty Scholarship

No abstract provided.

Realizing The Dream Of William O. Douglas: The Securities And Exchange Commission Takes Charge Of Corporate Governance, Roberta S. Karmel

Faculty Scholarship

No abstract provided.

Under A Critical Race Theory Lens -- Brown V. Board Of Education: A Civil Rights Milestone And Its Troubled Legacy, Carlo A. Pedrioli

Faculty Scholarship

This critical book review argues that James T. Patterson’s narrative in, "Brown v. Board of Education: A Civil Rights Milestone and Its Troubled Legacy," is a mostly balanced historical reflection. Here, the term balanced will refer to giving consideration to both the negative and positive aspects of the phenomenon in question. To advance its thesis, the book review initially offers an overview of Patterson’s historical narrative and evaluation of the Brown legacy. Then the book review analyzes Patterson’s conclusions through a Critical Race Theory lens. Given the focus of Critical Race Theory on race and the law, especially on how …

Induced Autism The Legal And Ethical Implications Of Inoculating Vaccine Manufacturers From Liability, Helia Garrido Hull

Faculty Scholarship

No abstract provided.

Practicing What We Teach: The Importance Of Emotion And Community Connection In Law Work And Law Teaching, Ann Juergens

Faculty Scholarship

Personal satisfaction and fine lawyering go hand in hand. Legal education and the legal system, however, do damage to that coupling. The author suggests that lawyers and law students can thwart personal dysfunction and professional dissatisfaction if we allow ourselves to express joy and sadness. To avoid being depleted by grief and rage, which cannot nourish satisfying law work over time, the article suggests that we attend to connections with others (all others). Lawyers who connect with their own communities may have more tools for crafting solutions for clients whose problems often implicate community. As teachers, the best way to …

Differentiating Types Of Domestic Violence: Implications For Child Custody, Nancy Ver Steegh

Faculty Scholarship

This article examines child custody determinations through the lens of a domestic violence typology. The resulting analysis (1) reconciles competing viewpoints and contradictory evidence about domestic violence; (2) matches families with appropriate child custody court procedures and services such as parent education, mediation, supervised visitation and parent coordination; and (3) exposes serious deficiencies in current domestic violence childcustody statutes.

Sacred Visions Of Law, Robert L. Tsai

Faculty Scholarship

Around the time of the Bicentennial Celebration of the U.S. Constitution's framing, Professor Sanford Levinson called upon Americans to renew our constitutional faith. This article answers the call by examining how two legal symbols - Marbury v. Madison and Brown v. Board of Education - have been used by jurists over the years to tend the American community of faith. Blending constitutional theory and the study of religious form, the article argues that the decisions have become increasingly linked in the legal imagination even as they have come to signify very different sacred visions of law. One might think that …

The Scopes Trope, Jay D. Wexler

Faculty Scholarship

In his book, Where Darwin Meets the Bible: Creationists and Evolutionists in America, journalist Larry Witham introduces the reader to the various characters involved in the ongoing controversy over evolution and creationism. His account is subtle and nuanced, and he demonstrates that the controversy is more complicated than many believe. Far from caricatures of godless scientists seeking to discard religion in thedustbin of history and reactionary religious fundamentalists decrying Darwinism as the downfall of mankind, Witham gives us the real stories of real people who dwell in shades far more gray than usually recognized. This book review builds upon Witham's …

The Republic Of Choice, The Pledge Of Allegiance, The American Taliban, Pnina Lahav

Faculty Scholarship

In two important books, The Republic of Choice and The Horizontal Society, published in 1990 and 1999 respectively, Lawrence M. Friedman presents his theories of a massive social transformation which occurred in the last century. I wish to examine these theories through the prism of two cases: Elk Grove Unified School District v. Newdow3 and Hamdi v. Rumsfeld,4 both decided in the spring of 2004. Both Newdow and Hamdi have been at the center of public controversy for many months; each case carries many of the ingredients presented in Friedman's The Republic of Choice and The Horizontal Society. I shall …

A New Approach To Health Care Adr: Training Law Students To Be Problem Solvers In The Health Care Context, Linda H. Morton

Faculty Scholarship

This article focuses on the use of actual public health problems to train law students in interdisciplinary problem solving. The author describes the planning, structure, challenges and rewards in teaching her clinical course, Problem Solving and Prevention in Healthcare, to students initially reluctant to work collaboratively in teams, intimidated by a broader community context, and hesitant to interact strategically with other professionals.

Regulating Section 527 Organizations, Guy-Uriel Charles, Gregg D. Polsky

Faculty Scholarship

No abstract provided.

Organizational Misconduct: Beyond The Principal-Agent Model, Kimberly D. Krawiec

Faculty Scholarship

This article demonstrates that, at least since the adoption of the Organizational Sentencing Guidelines in 1991, the United States legal regime has been moving away from a system of strict vicarious liability toward a system of duty-based organizational liability. Under this system, organizational liability for agent misconduct is dependant on whether or not the organization has exercised due care to avoid the harm in question, rather than under traditional agency principles of respondeat superior. Courts and agencies typically evaluate the level of care exercised by the organization by inquiring whether the organization had in place internal compliance structures ostensibly designed …

Lifting The Pall Of Orthodoxy: The Need For Hearing A Multitude Of Tongues In And Beyond The Sexual Education Curricula At Public High Schools, Carlo A. Pedrioli

Faculty Scholarship

When public high schools promote heterosexuality at the cost of denying sexual minority youth the opportunity to learn about minority sexualities, these schools contribute to the disastrous situation in which many sexual minority high school students find themselves. This approach, which many public high schools take, is unnecessarily destructive and warrants prompt change. Instead of helping to perpetuate many of the challenges that sexual minority students face in high school, public high schools can and need to help address these challenges. To establish the case for such a position, this article begins by presenting the plight of many sexual minority …

Private Language, Public Laws: The Central Role Of Legislative Intent In Statutory Interpretation, Lawrence Solan

Faculty Scholarship

No abstract provided.

Mapping, Habitat Characterization, And Fish Surveys Of The Deep-Water Oculina Coral Reef Marine Protected Area: A Review Of Historical And Current Research., John K. Reed, Andrew N. Shepard, Christopher C. Koenig, Kathryn M. Scanlon, R. G. Gilmore

Faculty Scholarship

Deep-water Oculina coral reefs, which are similar in structure and development to deep-water Lophelia reefs, stretch 167 km (90 nm) at depths of 60-100 m along the eastern Florida shelf of the United States. These consist of numerous pinnacles and ridges, 3-35 m in height, that are capped with thickets of living and dead coral, Oculina varicosa. Extensive areas of dead Oculina rubble are due in part to human impacts (e.g., fish and shrimp trawling, scallop dredging, anchoring, bottom longlines, and depth charges) but also may be due in part to natural processes such as bioerosion, disease, or global warming.

Molecular Evidence For Multiple Lineages In The Gorgonian Family Plexauridae (Anthozoa: Octocorallia)., H. H. Wirshing, Charles G. Messing, C. J. Douady, John K. Reed, M. J. Stanhope, M. S. Shivji

Faculty Scholarship

Octocorals are diverse and abundant on many marine hard substrates, and, within this group, members of the family Plexauridae are an important component of tropical reef assemblages, especially in the Caribbean. To understand historical relationships within this large and diverse assemblage, and to test the monophyly of the family and some of its genera, DNA sequences of two mitochondrial loci (msh1 and ND2, _1,185 bp) were analyzed from 46 species in 21 genera from deep and shallow waters in the tropical western Atlantic and in the tropical western and eastern Pacific (plus 9 taxa in the closely related Gorgoniidae and …

Habitat And Fish Populations In The Deep-Sea Oculina Coral Ecosystem Of The Western Atlantic., Christopher C. Koenig, Andrew N. Shepard, John K. Reed, F. C. Coleman, S. D. Brooke, J. Brusher, Kathryn M. Scanlon

Faculty Scholarship

The growth form of the scleractinian ivory tree coral Oculina varicosa (also known as fused ivory tree coral) that occurs on the shelf edge off Florida’s eastern coast is unique for this species. Here, the branching coral colonies coalesce into thickets supporting high vertebrate and invertebrate biodiversity and high densities of economically important reef fish. In 1984, the South Atlantic Fishery Management Council took the first step to protect the area from trawling and other disruptive bottom activities. Despite these protective measures, however, there is evidence that trawling has damaged previously intact coral habitat. In this paper, we describe results …

Global Democracy, Joshua Cohen, Charles F. Sabel

Faculty Scholarship

In this Article, we describe an emerging arena of global administration. We claim that this arena, not bounded by a state, raises accountability problems of a kind different from those addressed by conventional administrative law. And we argue that measures designed to address these problems will have potentially large implications for democratic theory and practice.

Our argument starts from the premise – stated here without nuance – that something new is happening politically beyond the borders of individual states and irreducible to their voluntary interactions. To distinguish these developments from what is commonly called "international law and politics," we use …

Can Lawyers Wear Blinders? Gatekeepers And Third-Party Opinions, John C. Coffee Jr.

Faculty Scholarship

The question in the title may seem to answer itself. But it does not; indeed, the question has been framed to explain my difficulty with Professor Schwarcz's position on third-party opinions. Frankly, Steven Schwarcz has taken a bold, tough position. Addressing what he sees as issues of "first impression," he asks "what it means for lawyers to issue legal opinions that create negative externalities," and "[i]f lawyers issuing legal opinions owe a duty to the public as well as to the opinion recipient." These are large, possibly even imponderable questions, but he answers them crisply and succinctly in the manner …

The Mosaic Theory, National Security, And The Freedom Of Information Act, David E. Pozen

Faculty Scholarship

This Note documents the evolution of the "mosaic theory" in Freedom of Information Act (FOIA) national security law and highlights its centrality in the post-9/11 landscape of information control. After years of doctrinal stasis and practical anonymity, federal agencies began asserting the theory more aggressively after 9/11, thereby testing the limits of executive secrecy and of judicial deference. Though essentially valid, the mosaic theory has been applied in ways that are unfalsifiable, in tension with the text and purpose of FOIA, and susceptible to abuse and overbreadth. This Note therefore argues, against precedent, for greater judicial scrutiny of mosaic theory …